U.S. v. Alisal Water Corp., C-97-20099-JF (EAI).
| Decision Date | 15 September 2000 |
| Docket Number | No. C-97-20099-JF (EAI).,C-97-20099-JF (EAI). |
| Citation | 114 F.Supp.2d 927 |
| Court | U.S. District Court — Northern District of California |
| Parties | UNITED STATES of America, Plaintiff, v. ALISAL WATER CORPORATION, et al., Defendants. |
Karen Dworkin, Lori Jonas, U.S. Department of Justice, Washington, DC, for plaintiff.
Stephan Barber, Ropers, Majeski, Kohn & Bentley, San Jose, CA, for defendants.
ORDER1 GRANTING PLAINTIFF'S MOTIONS FOR PARTIAL SUMMARY JUDGMENT
On October 12, 1999, the Court heard argument regarding three motions for partial summary judgment brought by Plaintiff. All three motions will be granted for the reasons set forth below.
In this civil action Plaintiff asserts that Defendant public water systems have committed numerous violations of the Safe Drinking Water Act ("SDWA"), 42 U.S.C. § 300f et seq., and the regulations implemented thereunder. Defendant Alisal Water Corporation owns and operates eight public water systems in the Salinas, California area: Alco Water Service, Blackie Road Water System # 18, Pine Canyon Division of Alco Water Service, Wildwood Water System, San Jerardo Water System, Vierra Canyon Water System, Vierra Estates Water System, and Langley/Valle Pacifico Water System. Defendant Toro Water Service owns and operates a public water system of the same name in the Salinas area. Defendant Moss Landing Harbor District, a subsidiary of Alisal Water Corporation, owns and operates the Moss Landing public water system. Defendant North Monterey County Water Service, Inc. ("NORMCO"), a subsidiary of Alisal Water Corporation, operates NORMCO public water system. All of these corporations and public water systems are owned, operated or controlled by two individuals, Robert Adcock and his wife Natholyn Adcock, both of whom are named as defendants in this action. Plaintiff seeks prospective injunctive relief, an assessment of substantial civil penalties and recovery of costs.
The SDWA requires that the Administrator of the United States Environmental Protection Agency ("EPA") promulgate national primary drinking water regulations addressing contaminants in drinking water provided through public water systems. The Administrator may grant to a state primary enforcement responsibility over public water systems so long as the state adopts and enforces drinking water regulations which are at least as stringent as the national primary drinking water regulations promulgated by the Administrator. The Administrator may bring a civil action for violation of any applicable requirement of the SDWA if requested by the state agency which has jurisdiction over compliance with national primary drinking water regulations or state drinking water regulations.
One set of regulations promulgated under the SDWA addresses levels of total coliform, an indicator of disease-causing organisms. These regulations, commonly known as the "Total Coliform Rule" or "TCR," set forth requirements for the maximum contaminant level ("MCL"), sampling, monitoring, reporting and record keeping.
Another set of regulations promulgated under the SDWA addresses levels of lead and copper. These regulations, commonly known as the Lead and Copper Rule, set maximum contaminant level goals ("MCLGs") for lead and copper and requirements for monitoring and evaluation of lead and copper levels.
In California, the State Department of Health Services ("DHS") is the agency with primary enforcement responsibility with respect to public water systems. The DHS in turn has agreements with local primary agencies ("LPAs") under which the LPAs enforce the SDWA as to certain public water systems. One such LPA, the Monterey County Health Department ("MCHD"), has primary enforcement responsibility with respect to some of the water systems at issue in this action while the DHS retains primary enforcement responsibility with respect to others.
In December 1992 and thereafter, the DHS noticed discrepancies in reports submitted by some of the public water systems operated by Defendants. The DHS investigated, and concluded that the systems were not complying with testing requirements and in some cases were altering documents relating to test results for total coliforms. During the course of its investigation, the DHS concluded that some of the documents had been altered by the laboratory which performed the systems' testing, American Analytical Laboratories ("the Lab"). The Lab was owned by Robert Adcock and managed by his daughter Lynette. The DHS concluded that there was a conflict of interest because the Adcocks' water systems had too much control over the manner in which their samples were handled and reported. The DHS ultimately issued an order mandating that all water quality control analysis for all systems owned by the Adcocks be performed by an independent laboratory.
In June 1994, the DHS requested that the EPA investigate the public water systems owned and operated by the Adcocks. On October 3, 1994, Magistrate Judge Patricia Trumbull granted the EPA's application for warrants to search the offices of Alco, Toro and the Lab. The warrants were executed on October 4, 1994, at which time a number of documents were seized. The seized documents were Bates-stamped by Special Agent Elizabeth Domagalski of the EPA, who also prepared an index showing which documents were found in which location. Additional documents subsequently were subpoenaed by a grand jury.
Review of the seized documents demonstrated inconsistencies. For example, worksheets and reports found at the Lab indicated positive test results for total coliform as to certain samples. However, reports found in the water systems' files indicated negative test results for the very same samples. Moreover, the seized documents indicated that the water systems commonly took many more samples than required and selected only negative samples for submission to the DHS or MCHD.
On August 15, 1996, the DHS sent a letter to the EPA requesting that the EPA bring civil and/or criminal action for violation of the SDWA against the Adcocks and all public water systems associated with them. Plaintiff filed this action on January 30, 1997. The operative second amended complaint asserts causes of action for: (1) failure of M.C.L. § for microbiological contaminants; (2) failure to notify state or county of failure of MCL; (3) failure to give public notice of failure of MCL; (4) failure to do repeat and increased routine monitoring; (5) failure to notify state or county of failure to do repeat or increased routine monitoring; (6) failure to report test results; (7) failure to sample according to written site sample plan; (8) failure to keep records; (9) failure to monitor for lead and copper; and (10) fraudulent conveyance.
Plaintiff has filed three separate motions for partial summary judgment. The first motion seeks adjudication of the corporate defendants' liability with respect to the first eight causes of action. The second motion seeks adjudication of the corporate defendants' liability with respect to the ninth cause of action. The third motion seeks adjudication that Robert and Patricia Adcock are personally liable for the violations of the SDWA set forth in the first nine causes of action. Defendants oppose all three motions.
A motion for summary judgment should be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of informing the Court of the basis for the motion, and identifying the portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits which demonstrate the absence of a triable issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
If the moving party meets its initial burden, the burden shifts to the non-moving party to present specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. 2548. A genuine issue for trial exists if the non-moving party presents evidence from which a reasonable jury, viewing the evidence in the light most favorable to that party, could resolve the material issue in his or her favor. See Anderson, 477 U.S. 242, 248-49, 106 S.Ct. 2505; Barlow v. Ground, 943 F.2d 1132, 1134-36 (9th Cir.1991).
The first eight causes of action allege that Defendant water systems violated national primary drinking water regulations regarding microbiological contaminants. Plaintiff seeks partial summary judgment with respect to these asserted violations.2 The Court concludes that Plaintiff has submitted ample evidence of the asserted violations. This evidence includes numerous documents obtained from the Lab, the files of Defendant water systems and the files of the DHS and the MCHD. Examination of the documents reveals significant discrepancies between the test results documented by the Lab on the one hand and the test results recorded and reported by Defendants on the other hand. The documents also indicate that Defendant water systems knew they had microbiological contaminant levels exceeding the MCL, failed to report or give the public notice of such contaminant levels, failed to do repeat and increased routine monitoring as required, failed to report the lack of such repeat and increased routine monitoring, failed accurately to report test results, failed to sample in the manner required and failed to keep records in the manner required.
Defendants do not dispute the existence of the discrepancies documented by Plaintiff. Rather, Defendants...
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